24 July 2016

Violence and Disclosure

The South Australian government has released a discussion paper on domestic violence, including a proposal - based on the UK Clare's Law - that would allow people to use an application to the police to gain access to the criminal record of a potential partner, with applicants having to establish their the bona fides.

Eight topics in the paper are

Domestic Violence Disclosure Scheme
- Who should be able to find out about someone’s history of domestic violence offending? How should this scheme work?

Expiry Dates on Intervention Orders
- Should intervention orders (previously restraining orders) be able to expire?

Comprehensive Collection of Data -
What is the best way to ensure that accurate data relating to domestic violence is collected?

Allowing Video Evidence -
Should police video recordings from incidents be admissible as evidence at trial?

Confidentiality
- Should changes be made to improve the confidentiality in court of medical and counselling records?

Drug and Alcohol Treatment
- Should the courts send domestic violence offenders to be assessed for drug and alcohol problems?

Housing and Homelessness Service Priorities - How can we best assist victims of domestic violence who are facing homelessness?

Fostering Supportive Environments
- How can we assist domestic violence victims to seek support in the workplace and other environments?

In relation to the disclosure scheme the paper indicates

There is no system in South Australia that allows you to find out about a person’s history of domestic violence offending. The South Australian Government has committed to considering the development and implementation of a domestic violence disclosure scheme (DVDS) to make this possible. A DVDS would aim to reduce the incidents of domestic violence and strengthen the ability of police and agencies to provide protection and support to victims of abuse.

Under a DVDS, you can ask for information about a partner’s history as a domestic violence offender. A series of checks are then performed and a decision made about whether you are at risk and should be told about the person’s history.

Who Should be Allowed to Apply?

This is an important question open for community discussion. For example, should the scheme only be available to people in a current relationship, or should you be able to find out about a previous partner? We are also asking you to consider whether disclosure applications should be extended to include third parties, such as family, friends and colleagues.

The Application Process

A DVDS in South Australia must have a simple and accessible application process. In similar schemes in the UK and NSW, applications are made through the police. The police then determine whether a disclosure should be made based on whether it may prevent a future crime.

Disclosure of Information

The question of what information should be disclosed requires careful consideration. For example, should information be limited to prior convictions for relevant criminal offences, or should the threshold be wider to include intervention orders or allegations?

Once a decision is made to disclose information, a clear process should be put in place for how the disclosure should occur. Under the NSW scheme, a disclosure is made in person at a police station or other agreed place to the primary person (i.e. the person in the relationship). Support services are also present when a disclosure is made.

To ensure the person’s safety, the ‘subject’ of the disclosure is not advised that an application or disclosure has been made about them.

Community and expert views are sought on a number of key issues. We are asking you to consider the parameters and processes that should apply to a DVDS in South Australia. This includes who should be able to apply for a disclosure, how someone should apply for a disclosure, whether age limits should be enforced and the factors that should be considered when determining whether a disclosure should be made.

The paper notes

The impact of the UK DVDS on the prevalence of domestic violence is still unknown as neither of the two assessments
completed by the Home Office have considered the impact the scheme may have had on domestic abuse victims.

The NSW Scheme

On 6 March 2015, the NSW Government announced it would pilot a DVDS similar to the scheme introduced in the UK and
released a discussion paper seeking comments on the proposed scheme. After wide public consultation, which included
a roundtable and targeted workshops with government and non-government organisations, the Government announced,
on 14 October 2015, that the DVDS would be piloted in four NSW Police Force Local Area Commands (Sutherland, St
George, Oxley and Shoalhaven). The NSW DVDS was rolled out on 13 April 2016 and will be evaluated over two years.
NSW Police will receive and review all applications made by a person who is concerned about their partner, or a
concerned third party, to find out if their partner has a history of domestic violence.

Under the NSW DVDS, a third party includes someone who has some form of contact with the primary person,
e.g. family, friends or legal guardians. It also includes professionals working with a member of the family.
On receipt of an application, NSW Police will check whether a relevant conviction exists that leads to a disclosure being
made to the primary person. A conviction will be disclosed where the person who is the subject of the application has a
relevant offence in their criminal history. Relevant offences include personal violence offences committed in a domestic
relationship and certain specific personal violence offences committed outside of a domestic relationship. Breaches of
apprehended violence orders will also be disclosed as they constitute a criminal offence.

Offences and orders that will not be disclosed under the NSW scheme include spent convictions and apprehended
domestic violence orders.

A disclosure will be made in person at a police station or other agreed safe place, and the person receiving the information
will be required to sign an undertaking that they will not misuse any information disclosed. Also present at the time of
disclosure will be an expert from a domestic and family violence support service to provide support and help plan for the
person’s safety. Support services will be present regardless of whether a disclosure is made or where a primary person is
advised that no relevant conviction exists. This ensures that the primary person will have immediate access to the necessary
support that is required when making a decision about their safety. The NSW Government also announced that it was
investing $2.3 million to assist non-government organisations provide specialist services in the four local command areas ...

Disclosure of Information

In the UK, police have a common law power to disclose information where it is necessary to prevent a crime. However,
any disclosures must be made in accordance with existing statutory obligations, such as the
Data Protection Act 1998
and the
Human Rights Act 1998. The UK Home Office DVDS Guidance
60
states that information sharing must:
•
be lawful, for example, the prevention, detection, investigation and punishment of a serious crime and the prevention of
abuse or serious harm will usually be sufficiently strong public interests to override the duty of confidence;
•
comply with the eight Data Protection Principles set out in the
Data Protection Act 1998;
•
be necessary; and
•
be proportionate.

The question of what information should be disclosed requires careful consideration. In the UK, Annex A of the DVDS
Guidance sets out a non-exhaustive list of offences that may be disclosed. The only limitation is in relation to spent
convictions which cannot be disclosed.

Disclosure under the NSW DVDS is limited to relevant offences which include personal violence offences committed in a
domestic relationship, stalking, intimidation, breaches of Apprehended Domestic Violence Orders and specific personal
violence offences, such as sexual offences, child abuse offences or murder, where they were committed outside of a
domestic relationship. Offences that cannot be disclosed under the NSW scheme include offences from jurisdictions
outside NSW, offences where no conviction has been recorded, spent convictions, juvenile convictions, Apprehended
Domestic Violence Orders and any other offence not listed in the relevant offences list.

SAPOL is of the view that any initiative which increases awareness and safety for victims, particularly in a preventative
capacity, is worthy of favourable consideration. However, SAPOL has some reservations relative to the NSW pilot model
and its restricted criteria for information release. The NSW DVDS will not disclose convictions for offences which have
occurred outside of NSW, offences where no conviction is recorded, spent convictions, juvenile convictions, or the
presence of an order (unless there are breaches).

In the view of SAPOL, this approach leaves significant gaps in information sharing as offences which have not resulted in
a conviction are not identified in this process. Similarly, other contextual factors which may place a victim at higher risk (for
example, misuse of alcohol or other drugs and mental health issues) would not be revealed.

SAPOL has noted that if the disclosure parameters were broadened, it would increase victim safety but would come at a
resourcing cost (noting that the model is resource intensive for police). SAPOL also noted that it is unknown, at this early
stage of the NSW pilot, how many applications may be received. In addition to the work generated by the application
process which includes a risk assessment process, it is highly likely that disclosures will be made to in a face-to-face
meeting. This in turn would generate further work in both supporting victims and investigating offences.

The disclosure of information by Government agencies in South Australia is governed by the Information Privacy
Principles and the Information Sharing Guidelines. An agency may disclose personal information about a person to a third
party in a number of circumstances including where the disclosure is required or authorised by, or under, law and if the
person disclosing the information believes on reasonable grounds that the disclosure is necessary to prevent or lessen a
serious threat to the life, health or safety of a person.

The question of what information should be able to be disclosed requires careful consideration. Disclosure of all offences
may not be necessary or proportionate and could undermine an individual’s basic right to privacy. A similar issue arises in
relation to the disclosure of intervention orders. An intervention order is a civil order that does not require a finding of guilt
by a court that the alleged perpetrator has committed a criminal offence. Indeed, an intervention order can be made by
mutual consent without any admissions by the defendant as to the matters in issue. A breach of an intervention order, on
the other hand, is a criminal offence.

Careful attention should therefore be given to the question of whether the disclosure of information should be limited
to prior convictions for relevant criminal offences (for example, domestic violence offences, sexual offences and some
offences against the person that involve violence) or whether the threshold should be wider? Should it include intervention
orders and/or charges or allegations relating to relevant offences?

In the UK, a two-stage process is adopted in the DVDS. The first step is to determine whether there is a need for the
disclosure in order to prevent abuse or serious harm. The second step requires consideration of the legal principles
discussed above.

In discussing confidentiality the paper indicates

In South Australia, counselling and medical records can be called upon as evidence during legal proceedings. This applies to domestic violence counselling.

There are two circumstances in which communications are protected under the law from being disclosed in legal proceedings:

communications that occur between a lawyer and their client

communications that occur during counselling relating to sexual assault. This protection cannot be waived, even if both the victim and the counsellor agree to it being disclosed.

Should changes be made to improve the confidentiality in court of medical and counselling records?

It comments

[T]he SDC recommended the Attorney-General amend the
Evidence Act 1929
(SA) to improve confidentiality of client records for victims of domestic and family violence.

The issue of confidentiality of client case records concerning victims of domestic violence was also raised in evidence
before the SDC. The example given was a defamation action taken in the small claims court, by an alleged perpetrator,
against a domestic violence service who held sensitive and confidential case notes containing information provided by the
victim. The agency settled the action at significant cost on the understanding that, if the action was defended, information
contained in the case notes would be required to be released to the plaintiff (the perpetrator) in the discovery process.
Under the common law, the only relationship in which communications are protected from disclosure in court is that
between a lawyer and a client. There is no general client privilege that protects counselling records from disclosure.
The confidentiality of counselling records is therefore limited, as access to these records can be requested in relation to
legal proceedings under subpoena. Agencies could argue that disclosure of the notes would be prejudicial to the client
if revealed in court or that it would otherwise be contrary to the interests of justice to admit the document in evidence. It
would then be up to the court to determine whether or not the records should be admitted into evidence.

What we have currently in South Australia is a protection for sexual assault counselling communications. Part 7, Division
9 of the Evidence Act 1929 (SA) provides that “a communication relating to a victim or alleged victim of a sexual offence
is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity”. This
protection cannot be waived, even if the counsellor or the victim agree to its disclosure. Section 67F further provides that
evidence of a protected communication is entirely inadmissible in committal proceedings, is not liable to discovery or any
other form of pre-trial disclosure and cannot be admitted in other legal proceedings unless the court gives permission and
the admission of the evidence is consistent with any limitations or restrictions fixed by the court.

There is no general privilege currently in South Australia for medical records or other records produced where there is
a duty of confidentiality, or an expectation of confidentiality by the victim. Whether or not some form of client privilege
should apply, either generally, or limited to domestic violence counselling records, therefore requires careful consideration.

Community and expert views are sought on whether amendments to the Evidence Act 1929 (SA) are
warranted to improve confidentiality for client records for domestic violence victims.

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The author pleads guilty to charges of irreverence, irony, indignation and honestly-held opinion.